Present:

Mr. Justice Md. Kamrul Hossain Mollah

Civil Revision No.2917 of 2022

IN THE MATTER OF:

An application under Section 115 (1) of the Code of Civil Procedure

- AND -

IN THE MATTER OF:

Md. Shafiun Chowdhury

... Plaintiff-Petitioner

-Versus –

Al Mamun Chowdhury and another

... Defendant-Opposite Parties Mr. Shakir Uddin Ahmed Bappy, Advocate

….For the petitioner Md. Mainul Islam, Advocate

…For both the Parties

Heard and Judgment on 17.08.2023

Md. Kamrul Hossain Mollah, J:

On an application by the petitioner, under section 115(1) of the Code

of Civil Procedure, this Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and decree dated 31.05.2022 passed by the learned Joint District Judge, 2nd Court, Netrokona in Other Appeal No.137 of 2021, affirming those dated 25.03.2021, passed by the learned Senior Assistant Judge, Purbodhola, Netrokona, in Other Class Suit No.232 of 2018, should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

At the time of issuance of the Rule this Court directed the parties to maintain Status-quo in respect of possession and position of the suit land.

Facts necessary for disposal of the Rule, in short, are that the present petitioner as plaintiff filed Other Class Suit No.232 of 2018 for declaration that the Gift Deed No.1036 dated 03.02.2000 is false and fabricated and not binding upon the plaintiff in the Court of learned Senior Assistant Judge, Purbodhola, Netrokona against the defendant-respondent-opposite party No.1 stating inter alia that the father of the plaintiff, Meher Ali Chowdhury used to own and possess 1.65 acres of land in Mouza-Kaldoar, Upazilla- Purbodhola, District-Netrokona as described in the schedule of the suit land and during his life time it was rightly recorded in the S.A. Khatian No.389 and S.A. Khatian No.486. Late Meher Ali Chowdhury had two wives and that the plaintiff and his brother Shamsul Arefin Chowdhury were from the first wife and his deceased father and his father’s second wife had 4 children, one is the defendant in the instant suit and three daughters. After the death of Meher Ali Chowdhury his children from two families inherited his properties as per law and they partitioned the land amongst themselves through in-house compromise. The plaintiff is in possession of the suit land and accordingly has established a tin shed house and has dug up a pond

therein. However, the defendant to deprive the plaintiff form the suit land executed deed No.1036 dated 03.02.2000 which was never acted upon, when the plaintiff came to know about the existence of the said gift deed, he filed the instant suit for declaration that the said gift deed is illegal, void and not finding upon the plaintiff and hence the case.

The defendant-respondent-opposite party contested the said suit by filing a written objection denying all material facts of the plaint and the case of the defendant, in short, is that the donor is the father of the defendant and the plaintiff is the step brother of the defendant. Upon anticipation after the death of Meher Ali Chowdhury, the plaintiff and his brother may deprive the defendant of his hare, Meher Ali Chowdury executed the said gift deed in full knowledge of all and henceforth the defendant has been possessing the suit land. Defendant further stressed in his written statement that the gift deed has properly executed and it is legally effective and the plaintiff has no title in the suit land and prayed for the suit to be dismissed.

After hearing the parties the learned Senior Assistant Judge, Purbodhola, Netrokona dismissed the Other Class Suit No.232 of 2018 by his judgment and decree dated 25.03.2021.

Being aggrieved and dissatisfied with the judgment and decree dated 25.03.2021 passed by the learned Senior Assistant Judge, Purbodhola, Netrokona in Other Class Suit No.232 of 2018 the petitioner as appellant filed the Other Appeal No.137 of 2021